A Test Track for Tuning Up Supreme Court Arguments

The moot courtroom at Georgetown is modeled after the actual Supreme Court chambers, complete with a pendulum clock and identical red curtains.

Christopher Gregory / The New York Times

June 23, 2013

Adam Liptak

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WASHINGTON — On a Friday afternoon in April, a lawyer from California took his Supreme Court argument for a test drive, trying out themes and soliciting advice from five lawyers and law professors pretending to be justices. Such moot courts are a crucial feature of modern Supreme Court advocacy.

The argument took place in a fake courtroom at Georgetown Law School. It looked like the real one, down to the columns and the big clock looming over the bench. But the participants were dressed informally, and about a dozen students looked on.

Lawyers in every case that was argued this term, including the ones on same-sex marriage, affirmative action and voting rights expected to be decided this week, first honed their arguments in the Georgetown courtroom.

The proceedings are secret, as most lawyers are not eager to muse on the weaknesses of their cases in public or to preview their arguments for their adversaries. After more than a little negotiation, the law school let me attend the moot court in April on the condition that I not write about it until the case was decided.

The moot court program, sponsored by the law school’s Supreme Court Institute, is popular with members of the Supreme Court bar, who scramble to make arrangements as soon as they learn the court has agreed to hear one of their cases. They have to act fast because the institute will help only one lawyer in a case, from whichever side asks first.

(There is an exception. A coin toss settles the matter when both sides contact the institute in the first 24 hours. “Petitioner is ‘heads,’ ” the institute’s Web site says, firmly, “and respondent is ‘tails.’ ”)

The program is also popular with the justices, who like their cases well presented. Last year, at a reception for the institute attended by four justices, Justice Ruth Bader Ginsburg said it provided “a tremendous service to the court.”

Jeffrey L. Fisher, with his Stanford Law School students, practiced his argument at Georgetown moot court.

Jim Wilson / The New York Times

The California lawyer, Jeffrey L. Fisher, was a Stanford law professor with 20 Supreme Court arguments to his credit. He had persuaded the court to resolve an issue that had divided the lower courts: Do criminal suspects have a right to remain silent during police questioning before they are taken into custody?

Mr. Fisher’s client, Genovevo Salinas, had answered many questions from the police during a murder investigation but balked when asked about whether shell casings from the lethal bullets would match his shotgun. At his trial, a prosecutor cited that silence as evidence of guilt, and he was convicted.

The Fifth Amendment says that no one “shall be compelled in any criminal case to be a witness against himself.” The Texas courts had said there had been no compulsion in Mr. Salinas’s case and thus no constitutional problem.

At the moot court in April, Irving L. Gornstein, the institute’s executive director, acted as chief justice. He has argued 36 cases before the Supreme Court, and his questions were crisp and hard.

Mr. Fisher explained that his client had been subjected to an impossible choice. Speaking would be used against him, and silence would be used against him. “No matter what you do, you are a witness against yourself,” he said.

So far, so good. If all Mr. Fisher had to refute was the reasoning of the Texas courts, he would have a fighting chance in the Supreme Court.

But he had a second problem. The United States solicitor general’s office had submitted a brief supporting the prosecution, and it proposed a different theory. It acknowledged a right to remain silent even before a suspect is taken into custody, but it said the suspect had to assert it.

Georgetown Law School's moot court is popular with members of the Supreme Court bar.

Christopher Gregory / The New York Times

“What is the problem with just requiring the person to invoke?” Mr. Gornstein asked.

That proved a harder question. Mr. Fisher had answers, but he struggled to compress them into a phrase short enough to survive rapid-fire questioning from the justices.

After about 45 minutes of argument, Mr. Fisher and his five questioners conferred about the strengths and pitfalls of his argument. Mr. Gornstein said that “there is a point to be made on practical administration,” meaning that an invocation requirement may sound fine in theory but would not work in practice.

Five days later, Mr. Fisher faced the justices. His presentation was polished, and his answers were clear.

Most important, he had boiled down his objections to the solicitor general’s argument to a checklist. Requiring suspects to invoke a constitutional right by mouthing “magic words,” he said, is “unnecessary, unfair, and a rule like that would be unadministrable.”

That part of his argument was important, he told me the next day, because he had come to realize that the solicitor general’s new theory was far more dangerous for his client than the one the lower courts had accepted.

“The Georgetown moot helped me understand that this is now a different case,” he said.

Last week in the actual Supreme Court decision, Mr. Fisher lost by a 5-to-4 vote along ideological lines. Three of the justices in the majority accepted the solicitor general’s argument and two said Mr. Salinas had not been compelled to do anything. The four dissenters repeated Mr. Fisher’s arguments.

The day after the decision, the first one Mr. Fisher had lost by a 5-to-4 vote, he was mulling the lessons he had learned. He had been beaten, he said, “on a theory that wasn’t even scratched at below.”

When the Supreme Court agrees to hear a case, he said, the attention it receives, through moot courts and other preparation, can alter its very nature.

“Once you actually put a case under a microscope,” he said, “it shows you how much a case can change.”